Sutherland v. Kelso et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, With Prejudice, for Failure to State a Claim Under Section 1983 re 10 First Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 7/5/2011. Referred to Judge Wanger. Objections to F&R due within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WILLIAM YOUNG SUTHERLAND,
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Plaintiff,
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CASE NO. 1:09-cv-02028-OWW-SKO PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UNDER SECTION 1983
v.
J. CLARK KELSO, et al.,
(Doc. 10)
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Defendants.
THIRTY-DAY OBJECTION PERIOD
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Findings and Recommendations Following Screening of Amended Complaint
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I.
Procedural History
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Plaintiff William Young Sutherland, a state prisoner proceeding pro se and in forma pauperis,
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filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 19, 2009. On February 3,
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2011, the Court dismissed Plaintiff’s complaint, with leave to amend, for failure to state any claims
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under section 1983. Plaintiff filed an amended complaint on March 7, 2011.
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II.
Screening Requirement and Standard
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the pleader
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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice,” Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to
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indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)
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(internal quotation marks and citation omitted). While factual allegations are accepted as true, legal
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conclusions are not. Iqbal, 129 S.Ct. at 1949.
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Under section 1983, Plaintiff must demonstrate that each defendant personally participated
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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires
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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct.
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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility
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of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss,
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572 F.3d at 969.
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III.
Plaintiff’s Amended Complaint
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A.
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Plaintiff, who suffers from a degenerative neck and back problem that is debilitating if not
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treated with pain medication, was transferred to Pleasant Valley State Prison (PVSP) in Coalinga,
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California on January 13, 2009. Plaintiff seeks to impose liability on the PVSP Medical Department,
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California Department of Corrections and Rehabilitation Health Care Services Chief J. Walker,
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PVSP Warden James Yates, PVSP Chief Medical Officer F. Igbinosa, and PVSP Pharmacist-in-
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Charge C. Yun for violating his rights under the Eighth Amendment of the United States
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Constitution.
Summary of Allegations
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Upon his arrival at PVSP, Plaintiff was initially placed in the orientation unit, where he was
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repeatedly denied his medication, leaving him to suffer in pain. Plaintiff was released from the
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orientation unit on January 30, 2009, and he received his medication regularly until February 14,
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2009, when the medication was stopped abruptly with no explanation. Plaintiff wrote to the medical
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department and then filed an inmate appeal on March 3, 2009, but the appeal was subsequently
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denied at every level. During this time period, Plaintiff asked medical staff members Roman, Didi,
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Morra, and Gonzalez for assistance and they told him that they would look into the situation, but he
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each time he followed up with them, they said they forgot.
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On March 5, 2009, Plaintiff saw Dr. Rohrdanz, who ordered an orthopedic pillow to help
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Plaintiff sleep at night, a number of tests, and a refill of Plaintiff’s pain medications. When Plaintiff
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made Dr. Rohrdanz aware that he had been deprived of his pain medication for three weeks, Dr.
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Rohrdanz assured him it would be reissued immediately. However, it took five days for one of the
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medications to be refilled and twenty-one days for the other medication to be refilled. The
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orthopedic pillow was not issued to Plaintiff until June 6, 2009. On May 1, 2009, Plaintiff saw Dr.
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Paja, who reordered Plaintiff’s pain medication. It took fourteen days for that refill to occur.
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During this time period, Plaintiff’s appeal was being partially granted at each level but the
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key issue of delay was avoided. On May 10, 2009, Plaintiff was interviewed by Defendant Yun, the
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pharmacist-in-charge, but he failed to address the issue of Plaintiff’s non-receipt of his medication
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in a timely manner. Defendant Yun referenced the dates the medications were ordered but not the
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failure to timely dispense them to Plaintiff.
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On June 5, 2009, Plaintiff’s pain medication was again stopped, and on June 14, 2009,
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Plaintiff submitted a request for an interview, stating that he was without his pain medication and
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was in extreme pain. On June 18, 2009, Plaintiff again saw Dr. Paja who reordered Plaintiff’s pain
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medication and tests; the medication order was never filled.
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On June 25, 2009, Defendant Igbinosa responded to Plaintiff’s appeal in a hostile,
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antagonistic manner. Defendant Igbinosa attacked Plaintiff’s request that his pain medication be
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refilled in a timely manner and his other health care requests, which demonstrated disregard for
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Plaintiff’s well-being.
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On July 12, 2009, while getting out of bed, extreme pain shot down Plaintiff’s left arm.
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Plaintiff lost his grip and fell from his upper bunk, injuring his left side and right shoulder and
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leaving him with loss of movement, pain, and the possible need for surgery.
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On July 15, 2009, Plaintiff went to the nurse’s line and he was immediately sent to see Dr.
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Rohrdanz due to the condition of his shoulder. Dr. Rohrdanz examined Plaintiff’s shoulder and
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ordered an x-ray stat. The x-ray confirmed shoulder damage and Dr. Rohrdanz said Plaintiff might
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need surgery.
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On July 24, 2009, Plaintiff was summoned to see Dr. Mardian, who refused to reorder the
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pain medication that Dr. Paja had ordered on June 18 but which was never filled. Dr. Mardian
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discontinued the prescription and instead increased Plaintiff’s dosage of Gabapentin. Plaintiff
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alleges that Gabapentin is a seizure medication and more recently, it has been discontinued as a pain
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reliever.
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On September 2, 2009, Plaintiff submitted a request for an interview because the increased
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Gabapentin dosage was upsetting his stomach and it was not relieving his pain. Plaintiff was seen
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by Dr. Pido on September 3, 2009. Dr. Pido told Plaintiff that he suffered from arthritis, not a
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dislocated shoulder, and that they do not give out pain medication for arthritis. Plaintiff tried to
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explain that the pain medication was for his degenerative back and neck pain, not his more recent
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shoulder injury, but Dr. Pido refused to acknowledge what Plaintiff was saying and kept insisting
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that Plaintiff only suffered from arthritis. Plaintiff requested to have a previously-ordered MRI with
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a sedative because he has claustrophobia, but Dr. Pido told Plaintiff that the facility’s health
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department does not provide MRIs unless Plaintiff underwent physical therapy. Plaintiff explained
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that an MRI had been ordered on several occasions but he was unable to undergo one because the
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sedative had not been provided. Dr. Pido refused to discuss anything further and refused to order
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any pain medication for Plaintiff.
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On October 7, 2009, Plaintiff submitted another request for an interview due to his extreme
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back and shoulder pain; he was seen by a doctor on October 13, 2009. On October 17, 2009,
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Plaintiff’s Gabapentin dosage was reduced back to the previously prescribed level. On November
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13, 2009, Plaintiff saw yet another doctor who reordered all of Plaintiff’s medications, but the
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Gabapentin was stopped.
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On February 18, 2010, the Gabapentin prescription was renewed. The medication ran out
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several times and it took two to three weeks to refill it. On October 19, 2010, the Gabapentin was
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permanently discontinued based on a decision that it would be prescribed for seizures only. On
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January 8, 2011, Plaintiff’s medication again ran out after only thirty days. Plaintiff received a refill
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on January 18, 2011, which ran out on February 3, 2011; Plaintiff sent in a refill request on February
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7, 2011.
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Plaintiff alleges that as evidenced by the foregoing, there is an ongoing pattern of negligence
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at PVSP, but Defendant Igbinosa refuses to address it and he responded to Plaintiff’s inmate appeal
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with aggression, denial, and defensiveness. Plaintiff alleges that the reckless disregard for inmate
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health and safety is an ongoing problem at the prison, and it is a high priority issue because it
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violates federal and state law and court orders issued in the Madrid and Plata cases.1 Plaintiff alleges
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that the number of complaints filed by inmates evidences the deliberate indifference and negligent
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disregard for inmates, and that these issues have been brought to the attention of Defendant Yates,
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Defendant Walker, Receiver J. Clark Kelso, and the Ombudsman, but the neglect remains.
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Plaintiff alleges that doctors are removing chronic pain medications on a facility-wide basis
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following the issuance of a memorandum by the Chief Medical Officer (Defendant Igbinosa), and
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that pain medication is being crushed to powder form in violation of pharmaceutical instructions and
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warnings. Plaintiff alleges that he has been denied vital medications, which causes him to suffer
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needless pain, and that all of the defendants were repeatedly informed of the situation but did
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nothing, going so far as to mislead, deceive, or lie during the inmate appeals process. Plaintiff
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alleges that the Chief Medical Officer is responsible for policymaking, compliance with federal and
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state laws and court orders, and meeting inmates’ basic needs; and that the Warden (Defendant
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Yates) has failed to step in and put a stop to the failure to meet Plaintiff’s basic needs. Finally,
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Plaintiff alleges that the entire PVSP medical department has recklessly and cruelly violated inmates’
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rights and the Hippocratic Oath.
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The Court takes judicial notice of Madrid, et al. v. Dept. of Corr. et al., case number 3:90-cv-03094-THE,
and Plata, et al. v. Brown, et al., case number 3:01-cv-01351-THE, both of which are class actions in the Northern
District of California challenging prison conditions of confinement.
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B.
Eighth Amendment Medical Care Claim
1.
Legal Standard
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate
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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096
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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two-part
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test requires Plaintiff to show (1) “‘a serious medical need’ by demonstrating that ‘failure to treat a
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prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction
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of pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d
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at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other
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grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal
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quotations omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to
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a prisoner’s pain or possible medical need, and harm caused by the indifference,” and it may be
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manifested “when prison officials deny, delay or intentionally interfere with medical treatment, or
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it may be shown by the way in which prison physicians provide medical care.” Jett, 439 F.3d at 1096
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(citing McGuckin, 974 F.2d at 1060 (internal quotations omitted)). Where a prisoner is alleging a
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delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner
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to make a claim of deliberate indifference to serious medical needs. McGuckin, 974 F.2d at 1060
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(citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).
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Stating a claim against managerial or supervisory personnel, as Plaintiff seeks to do here,
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requires a showing of personal participation in the deprivation of rights. Iqbal, 129 S.Ct. at 1948-49;
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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of
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Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Liability may not be
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imposed on managerial or supervisory personnel for violations committed by their subordinates
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under the theory of respondeat superior, Iqbal, 129 S.Ct. at 1948-49; Ewing, 588 F.3d at 1235, and
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they may be held liable only if they “participated in or directed the violations, or knew of the
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violations and failed to act to prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989);
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accord Starr v. Baca, 633 F.3d 1191, 1196-97 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570
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(9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th
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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).
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Discussion
a.
Existence of a Serious Medical Need
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“[T]he existence of an injury that a reasonable doctor would find important and worthy of
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comment or treatment, . . . the presence of a medical condition that significantly affects an
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individual’s daily activities, and . . . the existence of chronic or substantial pain” are indications of
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a serious medical need. Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (citation
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omitted); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Plaintiff’s allegations that he suffers
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from a degenerative neck and back problem which requires pain medication and that without the pain
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medication, his condition is debilitating are unquestionably sufficient to show the existence of a
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serious medical need. Lopez, 203 F.3d at 1131; Doty, 37 F.3d at 546 n.3; McGuckin, 974 F.2d at
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1060.
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b.
Deliberate Indifference
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In addition to adequately alleging the existence of a serious medial need, Plaintiff must allege
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sufficient facts to support the claim that each named defendant knowingly disregarding his serious
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medical needs. “Medical malpractice does not become a constitutional violation merely because the
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victim is a prisoner.” Estelle, 429 U.S. at 106. “Deliberate indifference is a high legal standard.”
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Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official
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must not only ‘be aware of the facts from which the inference could be drawn that a substantial risk
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of serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi, 391 F.3d at 1057
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(quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994)). “‘If a prison official should
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have been aware of the risk, but was not, then the official has not violated the Eighth Amendment,
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no matter how severe the risk.’” Toguchi, 391 F.3d at 1057 (quoting Gibson v. County of Washoe,
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Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
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1)
PVSP Medical Department
Plaintiff is attempting to impose liability on the PVSP Medical Department. As a state
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agency, the California Department of Corrections and Rehabilitation (CDCR), including its
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individual institutions, is entitled to Eleventh Amendment immunity from suit. Aholelei v. Dept.
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of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Therefore, the PVSP Medical Department
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is an improper defendant in this action and is entitled to dismissal. Id.
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2)
Walker and Yates
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Defendants Walker and Yates may not be held liable based on their positions of authority
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within CDCR and Plaintiff has not alleged any facts linking them to acts or omissions which suggest
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they were personally involved in acting with deliberate indifference to Plaintiff’s medical needs.
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Iqbal, 129 S.Ct. at 1948-49; Ewing, 588 F.3d at 1235. The general allegation that Defendants
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Walker and Yates were put on notice as to the medical problems at PVSP is insufficient to state a
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plausible claim against them for violating Plaintiff’s Eighth Amendment rights. Iqbal, 129 S.Ct. at
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1949-50; Moss, 572 F.3d at 969.
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3)
Igbinosa
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In addition to attempting to impose liability on Defendant Igbinosa based on the same
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allegations made against Defendants Walker and Yates, Igbinosa was involved in responding to
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Plaintiff’s inmate appeal. Although Plaintiff alleges that Defendant Igbinosa responded to his appeal
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with hostility, antagonism, aggression, defensiveness, and denial, and he attacked Plaintiff’s
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requests, including pleas for his pain medication refills, the context is almost entirely unclear. The
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mere possibility of misconduct is insufficient to support a plausible claim for relief and the Court
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cannot discern whether Defendant Igbinosa was simply rude, whether he merely failed to tell
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Plaintiff what Plaintiff wanted to hear, or whether he knowingly disregarded a substantial risk of
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harm to Plaintiff’s health. As a result, Plaintiff fails to state a viable claim against Defendant
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Igbinosa. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
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4)
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Yun
Finally, Defendant Yun was also involved via a review of Plaintiff’s inmate appeal.
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Defendant Yun interviewed Plaintiff and allegedly failed to address the issue of Plaintiff’s untimely
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medication refills. Defendant Yun cited the dates Plaintiff’s medications were ordered but not the
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dates they were refilled. This is simply insufficient to show Defendant Yun acted with deliberate
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indifference toward Plaintiff’s medical needs. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
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c.
Remedial Orders
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Regarding the remedial orders issued in Madrid and Plata, these cases do not provide Plaintiff
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with an independent cause of action under section 1983 because the orders do not have the effect of
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creating or expanding Plaintiff’s constitutional rights. See Cagle v. Sutherland, 334 F.3d 980, 986-
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87 (9th Cir. 2003) (consent decrees often go beyond constitutional minimum requirements, and do
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not create or expand rights); Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986) (remedial
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decrees remedy constitutional violations but do not create or enlarge constitutional rights).
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In determining whether Plaintiff states a claim, the Court looks to whether Plaintiff’s factual
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allegations support his contention that his constitutional rights were violated rather than to simply
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whether or not there was an alleged breach of an agreement in a different case. See Cagle, 334 F.3d
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at 986-87; Green, 788 F.2d at 1123; see also Garcia v. Stewart, No. C 06-6735 MMC (PR), 2009 WL
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688887, at *7-8 (N.D.Cal. Mar. 16, 2009) (section 1983 claim based on non-compliance with
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Castillo agreement not cognizable). Here, for the reasons set forth above, Plaintiff’s amended
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complaint does not set forth sufficient facts to state a plausible claim for relief against Defendants
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Walker, Yates, Igbinosa, and Yun for the violation of Plaintiff’s rights under the Eighth Amendment.
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Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
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IV.
Conclusion and Recommendation
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Plaintiff’s amended complaint fails to state a claim against Defendants PVSP Medical
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Department, Walker, Yates, Igbinosa, and Yun for violation of the Eighth Amendment. Plaintiff was
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previously given notice of the deficiencies in his claims and leave to amend, but he was unable to
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state a claim. Lopez, 203 F.3d at 1130; Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED, with prejudice,
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for failure to state a claim under section 1983.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)
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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ie14hj
July 5, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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